This Week at the Military Commissions, 3/7 Session: The "Time Warp" Edition

Editor's Note: We apologize for our military commissions coverage being published out of sequence, as transcripts for last Tuesday's hearing were only recently made available to us.

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Pretrial hearings continued in the USS Cole caseon Tuesday, as the parties sought to clear up some of the issues left from the previous day. Military Judge Colonel Spath calls the session to order, noting that “all members of the defense team who were present yesterday are again present,” as is “the accused.” Judge Spath asks after defense team member Richard Kammen’s clothes, which seem not to have arrived yet. Kammen says hopefully they’ll be there soon, then cracks wise: “The team will be really, relieved because they’re comparing me to [Mets baseball player] Mookie Wilson wearing his favorite uniform and smelling like Mookie Wilson wearing his favorite uniform.”

Discussion continues for the majority of the day on the “discovery laundering” issue from Monday, as Special Trial Counsel Major Michael Lebowitz starts out by saying MCDO IT has communicated that they do not believe the defense team browsed for the classified information, but they haven’t let the prosecution see for themselves whether that’s true.

Lebowitz asks Judge Spath to treat this as a discovery issue, accusing the defense of having “circumvented” the discovery process, either by directly downloading information or by receiving the benefit of access through shared drives. Judge Spath asks Lebowitz if he has evidence that the defense team accessed the information inappropriately. Lebowitz doesn’t answer directly, instead saying that the defense strategy implies that they have access to the information, and that they haven’t denied it.

Judge Spath comes back: “[A]t this point, do you have any information that this defense team has engaged in what you term improper browsing?”

Lebowitz answers no, not by design. He pivots back to discovery, pointing out that the defense team is simultaneously arguing that it doesn’t have accountability for all the information it may have gathered improperly but also says it probably has exculpatory Brady material. Lebowitz asks the court to impose the remedy that was proposed on Monday under United States v. Hadi of working with a third-party IT company to identify exculpatory material and then deleting the rest, which Lebowitz says is “narrowly tailored,” to allow the case to keep moving.

But the judge is not convinced:

“[W]hat do you want, I’m going to get them to pinky swear they won’t do it again? Because that’s what it looks like to me. You want me to say to them, there’s laws you have to follow . . . It is akin to me saying -- giving the do no drink order to an airman when they are already under 21 years old. The law already tells them they can’t drink. Why do I have to tell them they can’t drink?

Judge Spath grows more frustrated as the hearing continues: “Who can’t turn off the unauthorized access they’re attempting to get in a classified system?” Lebowitz explains that the information was accessed due to a technical glitch and wasn’t necessarily anybody’s fault. When Judge Spath asks if the glitch has been fixed, Lebowitz can’t confirm “100%” whether it is has been or not.

Judge Spath tries to refocus the discussion, asking if he is really supposed to order the defense team to give the information back, even if someone (“let’s pick Snowden”) gives it to them. Lebowitz argues yes. Judge Spath asks why, if the person that gave them information—“maybe they’ll move to Russia” —can get away, why he has to do anything to the defense team.

After a discussion of whether information has been properly stored or not, Judge Spath asks a more hard-hitting question: “[W]hy do we go through the effort of giving [defense counsel] what is our highest security clearance with special access conditions and then tell them, you can’t engage in any classified research?” Lebowitz tries a different tack, arguing that letting the defense keep the information would put the defense team in the statutorily-given position of the prosecution and the commission, because it would allow them to make national security determinations about the documents they are trying to use for their defense, which could then be used at trial.

Judge Spath expresses his curiosity as to the limits he can impose on the discovery process, and says he is trying to deal with the “appearance problem” that this comes off as the government being “afraid of what they have that they don’t know.” This is particularly a problem because the government routinely appears to be complying with discovery, only to then provide the defense with new records that should have been given to them before. The judge says that he can see why people would think the prosecution is trying to “graymail” the defense into not investigating in certain places. “This is about the government not being able to control its information systems,” is how he puts it.

Lebowitz suggests that the issue can be resolved with the defense going through their own files, and “on their honor” doing their due diligence and determining whether or not the information they’ve obtained is necessary for the case, without any input from the judge or the government. After they’ve done this, the irrelevant information can be destroyed. When the judge points out that even acting in good faith, the defense team is unlikely to categorize anything as irrelevant, Lebowitz responds that what he really values is the due diligence, because it will force the defense to account for the information. But, Judge Spath points out, Lebowitz hasn’t even proved that the defense has any suspect information in the first place.

The process that Lebowitz describes is not discovery, the judge suggests: it’s a means by which the government can find out what information the defense has by charting the documents they request from the government, which will reveal the defense strategy based on what the team thinks is relevant. Lebowitz points out that he is “walled off” from the prosecution team so the prosecution won’t have access to any information that comes through him.

As the long exchange continues, Judge Spath again makes the point that at the end of the day, there are still protections in place to make sure classified information does not get out at trial, and that the national security interest is still protected because the defense team is cleared counsel: “If Mr. Kammen hands it to the Miami Herald -- I only know because I know that person’s [Carol Rosenberg] here . . . Mr. Kammen won’t be here next time.” Lebowitz expresses his concern that this gives the defense a pass for accessing classified information, but Spath counters, saying that they still can’t offer it at trial unless it goes through the proper process.

Judge Spath finally puts the issue to rest, saying that he is “not going to tell people not to do it or to do it.” If the government really still wants the documents, the defense can hand them over after the USS Cole and 9/11 trials are done. Lebowitz gives it one more go, saying they still don’t know who the information is being shared with. But Spath says that’s a separate question, again one for law enforcement.

Judge Spath calls for a “comfort break,” and the court takes a recess.

When the session resumes, Lebowitz clarifies that he wants the defense team to identify all documents they downloaded after July 18, 2013; the government will be able to identify those documents that didn’t go through the regular discovery process by the absence of a Bates stamp. After a long exchange about who has what type of access to the system on both sides, Judge Spath makes the point for the final time that protections are in place to protect the information. Lebowitz makes one more summation of the equities involved in the defense team doing their due diligence, and then thanks Judge Spath.

Mary Spears is up next for team Nashiri, and she quickly corrects the record, saying that there were 1702 medical records given, not 1600 as Judge Spath had previously stated. Spears, after thanking Lebowitz for reporting the IT team’s verdict that there is no evidence the defense team browsed, points out that the investigation is another instance of a false positive. Spears confirms that the defense team is handling classified information properly when the judge asks, points out that Lebowitz doesn’t have any evidence to the contrary, and complains that the defense has had to spend time discussing this matter instead of being able to prepare for trial. The defense team will need their own lawyers if this continues, she says. She’s concerned about a third party going through the defense’s files. Judge Spath expresses his concern that Lebowitz’s inquiry by nature can’t be limited in scope, as others are listening (like “White House communications agencies”) and will want to widen any inquiry that Lebowitz carries out, no matter how narrow he tries to make it. The judge makes clear that he is going to take the defense team at its word that they haven’t had access and is not going to Mirandize them: “[I]f there’s no evidence of misconduct, there’s nothing this commission can do.” Lebowitz argues that the defense team hasn’t said they didn’t have access, only that they didn’t download it, but the judge points out that there have been immense spills of classified information (“just think Snowden and Manning”) so maybe the defense found their information that way.

After another exchange about the judge’s obligations to focus on just this defense team, Lebowitz continues to parse Spear’s answers to the judge’s questions. Then he rests. Spears speaks up and says she thought she had a conflict of interest with the other teams, so it didn’t occur to her to share information. Kammen wants a word now, confirms there was no improper access after July 18, 2013.

Judge Spath starts to craft his ruling by saying that he doesn’t care what the other teams did, only this one. He then denies the government’s motions, subject to an appeal:

“[T]he bureaucracy surrounding national security can be so frustrating to all the participants, but there’s reasons for it . . . again, there’s a national security interest in moving this process forward . . . so to the extent the prosecution shares my view . . . they should tread carefully. But they shouldn’t tread carefully if . . . they think classified information is being inappropriately disclosed.”

As the judge gets ready to recess, Kammen says that his clothes have arrived, and says he will return in “sartorial splendor.” Then Judge Spath calls a recess to allow the teams to switch and get situated.

When the session is called to order again, Kammen, decked out in his new suit, says that it may take the defense about 18 months to go through a set of audio recordings in Arabic, because the defense requested ten linguists and only received three. The judge tells Kammen to file a motion if he wants relief quicker, but Kammen explains that it’s mainly a contracting problem, and that he’ll keep the judge informed. Judge Spath asks about Captain Huang’s availability to testify, and Assistant U.S. Attorney Mark Miller replies that Huang is working with his command to make some time.

Next, Judge Spath brings up the motion to allow the defense and Dr. Sondra Crosby, a consulting physician on Nashiri's health, to have timely access to medical records and consultation with the medical team at Guantanamo. For the defense, Rosa Eliades explains that Nashiri wants to confer with Crosby regarding a medical procedure about which he received advice from doctors at Guantanamo, and Crosby needs the records to assist. The defense asked the medical team for access, who told them to ask the prosecutors, who then told them to ask the prison management.

Eliades explains that the procedure in question was a colonoscopy, so given Nashiri’s sexual victimization as a result of torture, “naturally anything that involved a colonoscopy would be a sensitive matter.” Eliades also complained that the current situation is a huge inconvenience for Crosby because she has to rearrange her schedule where she’s treating other torture victims. Eliades also points out that the procedure, while optional before, is no longer so. Eliades stresses that Crosby plays a critical role in the medical process, and presents the relief to the commission as a matter of saving resources and avoiding medical risks. In response to a question by Judge Spath, Eliades says they have already filed the necessary paperwork to move the issue forward.

Army Colonel John Wells responds for the government, agreeing that the defense has proven that the information to be declassified is relevant and necessary. That’s it for the first part of the motion. Regarding the second part of the motion dealing with consultation, however, Wells argues that Crosby is only there for mitigation at trial and sentencing, and that this part of the motion is ultra vires and goes well beyond what the law requires. Crosby being infused into the treating physician’s responsibility would create issues of interference with the medical professionals already treating Nashiri. Wells also points out that Crosby can still consult with Nashiri even if the motion isn’t granted. If there is a malpractice issue, the defense can write a letter to the Surgeon General or the medical group commander.

Judge Spath starts to clarify that the medical records are a matter for mitigation and that the defense has received medical records related to the procedure. Wells confirms, and says that Nashiri had a colonoscopy, which he “tolerated,” but that the second proposed procedure has some privacy concerns. The judge also makes clear that the standard for judicial intervention is “deliberate indifference” by the medical team, which Wells argues is not the situation facing them at the moment. And Wells points out that the military does have their own experts, and that this “seems to be a dark alley that they [the defense team] don’t want to shine the light down.”

The judge instructs Wells to make sure Southern Command knows that all the medical records at issue are declassified based on a previous order, so there’s no disconnect.

But Eliades wants to clarify something before the commission moves on: She thinks that Crosby’s role is more expansive than just providing expertise for mitigation at trial and sentencing, that it includes consulting with the team. The judge agrees. But he specifies that if the defense team doesn’t think their client is receiving adequate medical care, then that’s a different motion than this one.

Eliades says that Nashiri doesn’t trust the doctors he has now because these are the same people that “allowed these barbaric acts to take place.” “[T]his is not your average detainee. This is not your average prisoner,” Eliades says. She then repudiates Wells’s earlier comment about “dark alleys,” saying that the defense team acknowledge Nashiri is getting medical care, just in their opinion from the wrong people.

Wells responds with what he already said: If there’s medical care problem, you can bring a medical malpractice claim to the Surgeon General.

Judge Spath moves on to question Spears about the defense motion to compel writing by a senior medical officer, which is resolved after a discussion of the Federal Rules of Evidence (“this is more . . . just for law school discussions,” according to the judge) with Judge Spath saying the issue is probably moot. The judge and Wells discuss the plain meaning of the Rules and how it applies to the questioning of the senior medical officer and what the documents are for. “If it’s plain, stay in your lane,” Judge Spath quips.

Seeing how long the process is getting, Judge Spath orders another “comfort break,” and the court takes yet another recess for 10 minutes.

The court reconvenes for the final session of the day, and Eliades begins an exchange over whether Nashiri’s request to be housed in the court compound due to the transfer from the courtroom making him sick should be discussed publicly or in a closed session. Judge Spath seems to lean towards an open session, but Wells is more careful, saying it depends on what types of questions are asked of the medical personnel, given that the medical records are still classified. But the judge is leaning towards an open session, and Wells eventually agrees. Judge Spath instructs Wells to talk to the senior medical officer to work out any other concerns.

And now we’re back to Crosby, as Kammen gives a long, historical explanation to Judge Kammen about her role and how the medical care being given to Nashiri is producing issues that are not going to go away. Kammen claims the defense is proactively trying to solve a problem with Crosby, not create one—Crosby is there to “educate the commission on things about torture and the effects of torture and the sequelae of torture and Mr. Nashiri’s complex PTSD . . . ” Kammen continues at length in this vein, and then concludes.

Wells is up again, this time asking for guidance on when production of a witness is necessary, then asks how many times Nashiri hasn’t been able to attend the proceedings because of car sickness. Well suggests that the commission could let Nashiri “stand up and walk around,” to combat drowsiness. Wells then says that PTSD hasn’t been proven yet, and that the carsickness could be psychological or “just his [Nashiri’s] own physical condition.” After an exchange over judicial non-involvement with prisoner transfers with the judge, Wells makes the charge that the defense wants to call Crosby because they want her to testify that Nashiri is lying to his physicians.

Judge Spath starts to weigh whether it’s necessary to have Nashiri sleep at the court complex, counting PTSD as largely irrelevant here (at least until he has more witness testimony on it). Wells acknowledges that the situation must be an ordeal for Nashiri, to which Kammen responds that three military physicians have diagnosed Nashiri with PTSD, so he is surprised that the prosecution says they don’t know if he has it.

Finally, after a further exchange with Kammen over the effects of torture and a confirmation that Captain Huang is most likely on for tomorrow’s hearing, Judge Spath rules on the final issue of the day: the motion to compel witnesses to testify about the “destruction of video.” The judge rules in the defense team’s favor on the motion, telling them since they “did satisfy 703,” that he will allow them to compel the witnesses.

The witnesses, who are identified as A, B, C, and D in the record, include former CIA General Counsel John Rizzo, and former CIA clandestine service chief Jose Rodriguez, Jr., both of whom were involved with the destruction of tapes recording interrogations at CIA “black sites.” The other two witnesses seem to be James Mitchell and Bruce Jessen, the psychologists who designed and implemented the technique featured in the videos (and are incidentally also involved in civil litigation with another Guantanamo detainee).

After briefly handling a final string of administrative matters, Judge Spath places the commission in recess after what has been a trying day for all involved.

Jordan A. Brunner is a third-year law student at the Sandra Day O’Connor College of Law at Arizona State University, and was a national security intern at the Brookings Institution. Prior to law school, he was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science.